Reckless driving Failing to stop or eluding a police officer Careless driving.

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1 Chapter 9.28 SERIOUS TRAFFIC OFFENSES Reckless driving Failing to stop or eluding a police officer Careless driving Valid operator's license required Operating under the influence--prohibited; sentencing Driving under the influence--implied consent to chemical test Driving under the influence--refusal to submit to chemical tests Driving under the influence--chemical analysis of breath or blood Driving while intoxicated--responsibility for costs of incarceration Driving while intoxicated--administration of chemical tests without consent Impoundment and forfeiture of vehicle Failure to return a vehicle that has been released under a vehicle return bond Insurance or other security required Abatement of vehicles operated by delinquent offenders Operating under the influence--responsibility for costs of emergency response Reckless driving. A. It is unlawful to drive a motor vehicle in a manner which creates a substantial and unjustifiable risk of harm to a person or to property. B. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. C. A person endangered by the substantial and unjustifiable risk may include any person, including the driver creating this risk, whether the person is located inside or outside of such driver's vehicle. (CAC ; AO No ; AO No. 80-4; AO No ) Failing to stop or eluding a police officer. A. It is unlawful for the driver of any vehicle to willfully fail or refuse to bring the vehicle to a stop, or attempt to elude a pursuing police officer or police vehicle, when given visual or audible signal to bring the vehicle to a stop by a police officer. If the police officer is not in a vehicle, the signal given by such police officer shall be by hand or voice, and the police officer must be in uniform or otherwise be clearly identifiable as a police officer. If the police officer is in a vehicle, the visual signal shall be by flashing red or red and blue lights, and the audible signal shall be by emergency siren. B. A vehicle which fails to stop under subsection A of this section and which excludes a police officer is a public nuisance undersection and is subject to abatement in accordance with this section,section andSection Abatement proceedings under authority of this section,section andSection may not be pursued if the driver of the vehicle is prosecuted under subsection A of this section for the conduct giving rise to the nuisance. (AO No ; AO No , 1, ) Careless driving. It is unlawful to drive a motor vehicle without due regard for the width, grade, curve, corner,

2 other traffic use or other attendant circumstance of the street or other area where the vehicle is being driven, or to drive a motor vehicle in a manner that is without due regard for or is inattentive or unresponsive to any other surrounding circumstance or hazard that may be present. (CAC ; AO No ; AO No. 80-4; AO No ; AO No ) Valid operator's license required. A. No person may operate or drive a motor vehicle unless currently licensed as an operator, as required by the state, and in compliance with all conditions or limitations on such license. B. It is unlawful for any person to: 1. Drive a motor vehicle at a time when that person's driver's license, privilege to drive, or privilege to obtain a license has been canceled, suspended or revoked in this or another jurisdiction; or 2. Drive in violation of a limitation placed upon that person's license or privilege to drive in this or another jurisdiction. C. Upon conviction under subsection B of this section, the court: 1. Shall impose a minimum sentence of imprisonment: a. If the person has not been previously convicted, of not less than ten days with ten days suspended, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service; b. If the person has been previously convicted, of not less than ten days; c. In addition to the penalties provided in subsection a., if the person's driver's license, privilege to drive, or privilege to obtain a license was revoked under circumstances described in AS (c)(1), or if the person was driving in violation of a limited license issued under AS (d) following that revocation, of not less than 20 days with ten days suspended, and a fine of not less than $500.00, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service; d. In addition to the penalties provided in subsection a, if the person's driver's license, privilege to drive, or privilege to obtain a license was revoked under circumstances described in AS (c)(2), (3) or (4) or if the person was driving in violation of a limited license issued under AS (d) following that revocation, of not less than 30 days and a fine of not less than $1,000.00; 2. May impose additional conditions of probation; 3. May not: a. Suspend execution of sentence or grant probation except on condition that the person serve a minimum term of imprisonment and perform required community work service as provided in subsection 1 of this subsection; b. Suspend imposition of sentence; and 4. Shall revoke the person's license, privilege to drive, or privilege to obtain a license, and the person may not be issued a new license nor may the privilege to drive or obtain a license be restored for an additional period of not less than 90 days after the date that the person would have been entitled to restoration of driving privileges. 5. Except in mitigated circumstances, the court shall impose more than the mandatory minimum sentence. Mitigated circumstances do not exist if any of the following

3 circumstances are present: a. The defendant's driving conduct caused personal injury or property damage to another. b. The defendant failed to stop for a red light or stop sign. c. A container of alcoholic beverage was open in the passenger compartment of the defendant's vehicle. d. The defendant was on release under AS or AS or on probation for another DWI or refusal charge or conviction. e. The defendant has been previously convicted of reckless driving or leaving the scene of an accident. f. The defendant had a breath test result of 0.15 gram or more of alcohol per 210 liters of the defendant's breath as determined by a chemical test within four hours after the alleged offense was committed. 6. If the person has any interest in the vehicle used in the commission of the offense, the court shall order that: a. The vehicle be impounded for 30 days if the person has not been previously convicted; and b. The person's interest in the vehicle be forfeited to the municipality if the person has been previously convicted. At sentencing, the court shall order that any vehicle return bond which has been posted to secure the release of the vehicle be forfeited to the municipality if the vehicle subject to the vehicle return bond is not returned to the custody of the municipality within five days after the sentencing. At sentencing, the court shall order that any vehicle return bond posted to secure the release of the vehicle be exonerated when the vehicle has been returned to the custody of the municipality. At sentencing, the court may also order that any proceeds of any sale, transfer, or encumbrance of the vehicle be forfeited to the municipality if the vehicle has been sold, transferred, or encumbered while the vehicle has been subject to a vehicle return bond. A vehicle ordered impounded pursuant to this subsection shall not be released until after the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle, and has paid or provided proof of payment of the impound fees and the storage fees. The insurance requirement may be waived by the municipality if the vehicle is inoperable. Impound fees shall include the actual cost of impound plus an administrative fee of $ to offset the municipality's processing costs. Any order of impoundment or forfeiture entered under this subsection is subject to the rights of lienholders, owners, lessors, lessees, and co-owners who are not the person convicted of driving without insurance as those rights are adjudicated in civil proceedings undersection If the municipality has brought a civil action undersection seeking impoundment or forfeiture as against all those with an interest in the vehicle except the person charged with a violation of this section, that civil action shall provide the sole forum in which lienholders, owners, lessors, lessees, and co-owners who claim an interest in the vehicle but are not the person charged with a violation of this section can seek relief. D. When a person's license is cancelled, limited, suspended or revoked, that person shall be informed by the state department of public safety or the court that takes the action at the time of the action that, upon a conviction of driving in the municipality at a time when that person's driver's license or privilege to drive has been cancelled, suspended or revoked, or upon a conviction of driving in violation of a limitation of the license, that person will be subject to the mandatory minimum sentence of imprisonment under subsection C of this section. E. In this section, the term "previously convicted" means having been convicted in this or another jurisdiction, within ten years preceding the date of the present offense, of a violation of this section or another law or ordinance with substantially similar elements.

4 F. The magistrate or judge who sets the conditions of release for a person arrested under this section shall at the same time set a vehicle return bond for the vehicle alleged in an oral statement of a police officer to have been used in the commission of the offense if the records of the Alaska Department of Public Safety, division of motor vehicles or the records of an agency with similar responsibilities in another state show that the person arrested for the offense has any interest in the vehicle. The purpose of setting a vehicle return bond is to secure the presence of the vehicle pending trial and to provide security to be forfeited along with the proceeds of a sale, transfer, or encumbrance if the defendant's interest in the vehicle is sold, transferred, or encumbered after the vehicle has been released pending trial. A person who secures the release of a vehicle pursuant to a vehicle return bond must return the vehicle to the custody of the municipality upon order of the court. If the vehicle's release has been obtained through the posting of a vehicle return bond and the vehicle is not returned pursuant to the court's order after a judgment of conviction, the municipality may, in addition to obtaining the forfeited bond funds, seize the vehicle to implement the impoundment or forfeiture ordered by the court. If the person has not been previously convicted, the magistrate or judge setting the vehicle return bond shall order that the requirement of the vehicle return bond shall automatically expire 30 days after the vehicle has been seized if the vehicle has not been released pursuant to a vehicle return bond. The vehicle return bond set under the authority of this subsection may only be posted by a person alleged to have used the vehicle in the commission of one of the offenses described in this section or by a person who agrees to return the vehicle upon order of the court upon penalty of forfeiture of the bond. The vehicle return bond set under the authority of this subsection may be posted at the municipality. A vehicle return bond may be posted in cash only. A vehicle return bond shall be set at a minimum of: 1. Two hundred fifty dollars if the person has not been previously convicted. 2. Five hundred dollars if the person has been previously convicted and the vehicle is 20 years old or older. 3. One thousand dollars if the person has been previously convicted and the vehicle is 15 years old or older but less than 20 years old. 4. One thousand five hundred dollars if the person has been previously convicted and the vehicle is ten years old or older but less than 15 years old. 5. Two thousand dollars if the person has been previously convicted and the vehicle is five years old or older but less than ten years old. 6. Two thousand five hundred dollars if the person has been previously convicted and the vehicle is less than five years old. A vehicle return bond may be set above the minimum if the vehicle appears to have unusually high value for its age. A vehicle that is or has been the subject of an order under this subsection shall not be released pending trial until the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the vehicle return bond and towing and storage fees, including the administrative fee of $ to offset the municipality's processing costs. A vehicle that is or has been the subject of an order under this subsection shall not be released pending trial until the person seeking release of the vehicle has provided proof of ownership of the vehicle and paid or provided proof of payment of the vehicle return bond and towing and storage fees, including the administrative fee of $ to offset the municipality's processing costs. If a vehicle has not been impounded for a longer period than the vehicle would be impounded if the person were convicted, the court shall not delete the requirement of the vehicle return bond or exonerate a posted vehicle return bond until the vehicle for which bond has been posted is returned pursuant to court order. Unless the following sentence applies, a vehicle that is or has been the subject of a vehicle return bond may only be released if the person seeking the release of the vehicle provides proof of insurance or an affidavit of insurance, and pays or provides proof of payment of the towing and storage costs, including the administrative fee of $ to offset the municipality's processing costs. The insurance requirement may be waived by the municipality if the

5 vehicle is inoperable. A vehicle may be recovered without payment of the storage costs, including the administrative fee, only if a court makes a specific finding that the seizure of the vehicle was legally unjustified and such specific finding follows a contested hearing or is pursuant to a stipulation between the parties. A seizure is "legally unjustified" only if there was: (1) no reasonable suspicion for the stop of the vehicle leading to an arrest for one of the offenses described in this section based on the individual allegedly operating, driving, or being in actual physical control of the vehicle; or (2) no probable cause for the arrest of an individual for one of the offenses described in this section based on the individual allegedly operating, driving, or being in actual physical control of the vehicle. G. The conditions of release established for a person charged under this section shall include at a minimum an order that the person's interest, if any, in the vehicle alleged in an oral statement by a police officer, criminal complaint, information, or indictment to have been used in the commission of the offense be forfeited if the person does not appear as ordered. This subsection applies to any release before judgment of conviction, including any release on the person's own recognizance. H. A vehicle that is or has been the subject of an order setting a vehicle return bond under subsection F. of this section and has not been released pursuant to that order is subject to the provisions of AS if no criminal complaint, information, or indictment is filed by the date and time of the scheduled arraignment alleging a violation of this section or if the count of the criminal complaint, information, or indictment alleging a violation of this section is amended upon motion of the prosecution, is dismissed by the prosecution, or is resolved by the acquittal of the person alleged to have violated this section. The provisions ofchapter 9.50do not apply to a vehicle that is or has been the subject of an order setting a vehicle return bond under subsection F. of this section. Any vehicle return bond set expires on the date and time of the scheduled arraignment if no criminal complaint, information, or indictment alleging a violation of this section is filed by the date and time of the scheduled arraignment. I. Vehicles ordered impounded under subsection C.6. which are not claimed at the end of the court-ordered period of impoundment may be disposed of pursuant to the provisions of AS If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle. Personal property in a vehicle that is subject to a vehicle return bond under subsection F. and has not been released pursuant to that vehicle return bond can be recovered only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the municipality if it is not established by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding that the seizure of the vehicle was legally unjustified following a contested hearing or pursuant to a stipulation between the parties. J. A motor vehicle that is the subject of a vehicle return bond under subsection F. and has not been released pursuant to that vehicle return bond shall be held in the custody of the police department or a private corporation authorized by the chief of police to retain custody of the motor vehicle, subject only to the orders and decrees of any court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, the chief of police or his or her authorized designee may: 1. Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or 2. Take custody of the motor vehicle and any contents of the motor vehicle and remove it to an appropriate location for disposition in accordance with law. K. Before disposing of any vehicle forfeited under this section, the chief of police or his or her designee shall make an inventory of the contents of any motor vehicle seized. Property forfeited under this section shall be disposed of by the chief of police or his or her designee in accordance with this subsection. Property forfeited under this section includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle if those contents have

6 not been recovered before the date of the disposal. The chief of police or his or her designee may: 1. Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and municipal attorney fees, provided if such sale is arranged for by the impound contractor the municipality shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the vehicles sold; 2. Take custody of the property and use it in the enforcement of the municipal and state criminal codes; or 3. Destroy the property. (CAC ; AO No ; AO No ; AO No (S); AO No , ; AO No ; AO No (S); AO No , 1, ; AO No , 1, ; AO No , 6, 7, ; AO No , 1, 2, ) Operating under the influence--prohibited; sentencing. A. It is unlawful for any person to commit the crime of operating under the influence. B. A person commits the crime of operating under the influence if the person operates a motor vehicle, aircraft, or watercraft: 1. While under the influence of an alcoholic beverage, inhalant, controlled substance as defined in AS , or other impairing substance, or any combination thereof; or 2. Having consumed a sufficient quantity of alcohol that, as determined by a chemical test taken within four hours after operating, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or there is 0.08 grams or more of alcohol per 210 liters of the person's breath; or 3. Having consumed a sufficient quantity of alcohol that, as determined by a chemical test taken within four hours after operating, there is 0.04 percent or more by weight of alcohol in the person's blood or 40 milligrams or more of alcohol per 100 milliliters of blood, or there is 0.04 grams or more of alcohol per 210 liters of the person's breath, and the vehicle is a commercial motor vehicle as defined in AS Editor's note: AO No , as amended lowered the legal limits effective 9/1/01. C. Upon conviction for driving under the influence under this section: 1. The court shall impose a minimum sentence of imprisonment of: a. Not less than 72 consecutive hours and a fine of not less than $1, if the person has not been previously convicted. b. Not less than 20 days and a fine of not less than $3, if the person has been previously convicted once. c. Not less than 60 days and a fine of not less than $4, if the person has been previously convicted twice. d. Not less than 120 days and a fine of not less than $5, if the person has been previously convicted three times. e. Not less than 240 days and a fine of not less than $6, if the person has been previously convicted four times.

7 f. Not less than 360 days and a fine of not less than $7, if the person has been previously convicted more than four times. 2. Except in mitigated circumstances, the court shall impose more than the mandatory minimum sentence. Mitigated circumstances do not exist if any of the following circumstances are present: a. The defendant's driving conduct caused personal injury or property damage to another. b. The defendant failed to stop for a red light or stop sign. c. A container of alcoholic beverage was open in the passenger compartment of the defendant's vehicle. d. The defendant was on release under AS or AS or on probation for another DUI or refusal charge or conviction. e. The defendant has been previously convicted of reckless driving or leaving the scene of an accident. f. The defendant had a breath test result of 0.15 grams or more of alcohol per 210 liters of the defendant's breath as determined by a chemical test within four hours after the alleged offense was committed. 3. The court may not: a. Suspend execution of sentence or grant probation except on condition that the person serve the minimum imprisonment under subsection 1 of this subsection. b. Suspend imposition of sentence. 4. If the offense involved driving a motor vehicle for which a driver's license is required, the person's driver's license shall be revoked in accordance with AS In addition, the court shall order, and a person convicted under this section shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation that the court, after consideration of any information compiled under subsection D of this section, finds appropriate. 5. If the person has any interest in the vehicle used in the commission of the offense, the court shall order that: a. The vehicle be impounded for 30 days if the person has not been previously convicted; and b. The person's interest in the vehicle be forfeited to the municipality if the person has been previously convicted. At sentencing, the court shall order that any vehicle return bond which has been posted to secure the release of the vehicle be forfeited to the municipality if the vehicle subject to the vehicle return bond is not returned to the custody of the municipality within five days after the sentencing. At sentencing, the court shall order that any vehicle return bond posted to secure the release of the vehicle be exonerated when the vehicle has been returned to the custody of the municipality. At sentencing, the court may also order that any proceeds of any sale, transfer, or encumbrance of the vehicle be forfeited to the municipality if the vehicle has been sold, transferred, or encumbered while the vehicle has been subject to a vehicle return bond. A vehicle ordered impounded pursuant to this subsection shall not be released until after the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the impound fees and the storage fees. The

8 insurance requirement may be waived by the municipality if the vehicle is inoperable. Impound fees shall include the actual cost of impound plus an administrative fee of $ to offset the municipality's processing costs. Any order of impoundment or forfeiture entered under this subsection is subject to the rights of lienholders, owners, lessors, lessees, and co-owners who are not the person convicted of driving under the influence as those rights are adjudicated in civil proceedings undersection If the municipality has brought a civil action undersection seeking impoundment or forfeiture as against all those with an interest in the vehicle except the person charged with a violation ofsection , that civil action shall provide the sole forum in which lienholders, owners, lessors, lessees, and co-owners who claim an interest in the vehicle but are not the person charged with a violation ofsection can seek relief. Editor's note: AO No , as amended lowered the legal limits effective 9/1/ The court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this subsection is in addition to any other condition authorized under another provision of law. 7. If the court determines that the person has successfully completed a court-ordered treatment program, the court may suspend up to 75 percent of the mandatory minimum sentence required under this section and up to 50 percent of the minimum fines required under this section. This subsection does not apply to a person who has already participated in a court-ordered treatment program two or more times. In this subsection court-ordered treatment means a treatment program for a person who consumes alcohol or drugs and that a. Requires participation for at least 18 consecutive months; b. Includes planning and treatment for alcohol or drug addiction; c. Includes emphasis on personal responsibility; d. Provides in-court recognition of progress and sanctions for relapses; e. Requires payment of restitution to victims and completion of community work service; f. Includes physician approved treatment of physical addiction and treatment of the psychological causes of addiction; g. Includes a monitoring program and physical placement or housing; and h. Requires adherence to conditions of probation. D. Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant's treatment with information and reports concerning the defendant's past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant's treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under subsection C of this section. E. For purposes of this chapter, the following terms shall have the meaning given in this subsection: 1. Inhalant has the meaning given to the phrase "hazardous volatile material or substance" in Alaska Statute ; 2. Interest in the vehicle means a right, claim, or title to the vehicle or a legal share in

9 the vehicle that the oral statement of a police officer, complaint, indictment, or information alleges was used in the commission of an offense. 3. Operate a watercraft means to navigate a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes on all waters, fresh or salt, inside the territorial limits of the municipality. 4. Physical control means to be behind the steering apparatus of a motor vehicle, whether asleep or awake, while the engine is running or any electrical or mechanical devices are turned on, or to be in a position to exercise exclusive control over the operation of the vehicle while possessing the apparent means to start the vehicle and the apparent ability to do so. 5. Previously convicted means having been convicted in this or another jurisdiction of operating a motor vehicle, aircraft or watercraft under the influence under this section or another law or ordinance with substantially similar elements, or of refusal to submit to a chemical test under AS orsection or another law or ordinance with substantially similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person's blood or breath than imposed under subsection B.2. F. For purposes of this section, convictions for both driving under the influence and for refusal to submit to a chemical test of breath undersection , if arising out of a single transaction and a single arrest, are considered one previous conviction. G. The court shall order a person convicted under this section to satisfy the screening, evaluation, referral and program requirements of an agency authorized by the court to make referrals for rehabilitative treatment or to provide rehabilitative treatment. H. A program of inpatient treatment may be required by the authorized agency under subsection G of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency's referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review. I. If a person fails to satisfy the requirements of an authorized agency under subsection H of this section, the court: 1. May impose any portion of a suspended sentence. 2. May punish the failure as contempt of court under AS or as a violation of a condition of probation. 3. Shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a license until the requirements are satisfied. J. The magistrate or judge who sets the conditions of release for a person arrested for driving under the influence shall at the same time set a vehicle return bond for the vehicle alleged in an oral statement of a police officer to have been used in the commission of the offense if the records of the Alaska department of public safety, division of motor vehicles or the records of an agency with similar responsibilities in another state show that the person arrested for the offense has any interest in the vehicle. The purpose of setting a vehicle return bond is to secure the presence of the vehicle pending trial and to provide security to be forfeited along with the proceeds of a sale, transfer, or encumbrance if the defendant's interest in the vehicle is sold, transferred, or encumbered after the vehicle has been released pending trial. A person who secures the release of a vehicle pursuant to a vehicle return bond must return the vehicle to the custody of the municipality upon order of the court. If the vehicle's release has been obtained through the posting of a vehicle return bond and the vehicle is not returned pursuant to the

10 court's order after a judgment of conviction, the municipality may, in addition to obtaining the forfeited bond funds, seize the vehicle to implement the impoundment or forfeiture ordered by the court. If the person has not been previously convicted, the magistrate or judge setting the vehicle return bond shall order that the requirement of the vehicle return bond shall automatically expire 30 days after the vehicle has been seized if the vehicle has not been released pursuant to a vehicle return bond. The vehicle return bond set under the authority of this subsection may only be posted by a person alleged to have used the vehicle in the commission of the offense of driving under the influence or by a person who agrees to return the vehicle upon order of the court upon penalty of forfeiture of the bond. The vehicle return bond set under the authority of this subsection may be posted at the municipality. A vehicle return bond may be posted in cash only. A vehicle return bond shall be set at a minimum of: 1. Two hundred fifty dollars if the person has not been previously convicted. 2. Five hundred dollars if the person has been previously convicted and the vehicle is 20 years old or older. 3. One thousand dollars if the person has been previously convicted and the vehicle is 15 years old or older but less than 20 years old. 4. One thousand five hundred dollars if the person has been previously convicted and the vehicle is ten years old or older but less than 15 years old. 5. Two thousand dollars if the person has been previously convicted and the vehicle is five years old or older but less than ten years old. 6. Two thousand five hundred dollars if the person has been previously convicted and the vehicle is less than five years old. A vehicle return bond may be set above the minimum if the vehicle appears to have unusually high value for its age. A vehicle that is or has been the subject of an order under this subsection shall not be released pending trial until the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the vehicle return bond and towing and storage fees, including the administrative fee of $ to offset the municipality's processing costs. If a vehicle has not been impounded for a longer period than the vehicle would be impounded if the person were convicted, the court shall not delete the requirement of the vehicle return bond or exonerate a posted vehicle return bond until the vehicle for which bond has been posted is returned pursuant to court order. Unless the following sentence applies, a vehicle that is or has been the subject of a vehicle return bond may only be released if the person seeking the release of the vehicle provides proof of insurance or an affidavit of insurance, and pays or provides proof of payment of the towing and storage costs, including the administrative fee of $ to offset the municipality's processing costs. The insurance requirement may be waived by the municipality if the vehicle is inoperable. A vehicle may be recovered without payment of the towing and storage costs, including the administrative fee, only if a court makes a specific finding that the seizure of the vehicle was legally unjustified and such specific finding follows a contested hearing or is pursuant to a stipulation between the parties. A seizure is "legally unjustified" only if there was: (1) no reasonable suspicion for the stop of the vehicle leading to an arrest for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle; or (2) no probable cause for the arrest of an individual for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle. K. The conditions of release established for a person charged with driving under the influence (DUI) shall include at a minimum an order that the person's interest, if any, in the vehicle alleged in an oral statement by a police officer, criminal complaint, information, or indictment to have been used in the commission of the offense be forfeited if the person does not appear as ordered. This subsection applies to any release before judgment of conviction on a charge of driving under the influence, including any release on the person's own recognizance. L. A vehicle that is or has been the subject of an order setting a vehicle return bond under

11 subsection J of this section and has not been released pursuant to that order is subject to the provisions of AS if no criminal complaint, information, or indictment is filed by the date and time of the scheduled arraignment alleging a violation of this section or if the count of the criminal complaint, information, or indictment alleging a violation of this section is amended upon motion of the prosecution, is dismissed by the prosecution, or is resolved by the acquittal of the person alleged to have violated this section. The provisions ofchapter 9.50do not apply to a vehicle that is or has been the subject of an order setting a vehicle return bond under subsection J of this section. Any vehicle return bond set expires on the date and time of the scheduled arraignment if no criminal complaint, information, or indictment alleging a violation of this section is filed by the date and time of the scheduled arraignment. M. Vehicles ordered impounded undersection C.5 which are not claimed at the end of the court-ordered period of impoundment may be disposed of pursuant to the provisions of AS If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle. Personal property in a vehicle that is subject to a vehicle return bond undersection J and has not been released pursuant to that vehicle return bond can be recovered only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the municipality if it is not established by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding that the seizure of the vehicle was legally unjustified following a contested hearing or pursuant to a stipulation between the parties. N. A motor vehicle that is the subject of a vehicle return bond undersection J and has not been released pursuant to that vehicle return bond shall be held in the custody of the police department or a private corporation authorized by the chief of police to retain custody of the motor vehicle, subject only to the orders and decrees of any court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, the chief of police or his or her authorized designee may: 1. Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or 2. Take custody of the motor vehicle and any contents of the motor vehicle and remove it to an appropriate location for disposition in accordance with law. O. Before disposing of any vehicle forfeited under this section, the chief of police or his or her designee shall make an inventory of the contents of any motor vehicle seized. Property forfeited under this section shall be disposed of by the chief of police or his or her designee in accordance with this subsection. Property forfeited under this section includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle if those contents have not been recovered before the date of the disposal. The chief of police or his or her designee may: 1. Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and municipal attorney fees, provided if such sale is arranged for by the impound contractor the municipality shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the vehicles sold; 2. Take custody of the property and use it in the enforcement of the municipal and state criminal codes; or 3. Destroy the property. P. It is not a defense to a charge under this section that the person, having voluntarily consumed a substance, did not know the substance would impair the person's ability to operate

12 a motor vehicle, aircraft, or watercraft. (AO No ; AO No ; AO No (S); AO No ; AO No ; AO No ; AO No , ; AO No ; AO No (S); AO No ; AO No (S), 11, ; AO No (S-1), 1--9, ; AO No (S), 1--5, ; AO No , 1, ; AO No , 1, ; AO No , 1, ; AO No , 1, ; AO No (S-1), 6, ; AO No , 2, ; AO No , 8, 9, ; AO No , 3, 4, ; AO No , 1, 2, ) Editor's note: AO No occasioned by 1996 Proposition 3 Initiative enacting Chapter XXI. Cross references: Penal code,tit. 8; drinking alcoholic beverages while driving, ; alcoholic beverages,ch Driving under the influence--implied consent to chemical test. A. A person who operates, drives or is in actual physical control of a motor vehicle within the municipality or who operates an aircraft as defined by subsection E.1 or who operates a watercraft as defined by subsection E.2 shall be considered to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating, driving or in actual physical control of a motor vehicle or operating an aircraft or a watercraft under the influence. The test shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating, driving or in actual physical control of a motor vehicle or operating an aircraft or a watercraft in the municipality under the influence. B. A person who operates or drives a motor vehicle, aircraft or watercraft within the municipality shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person: 1. Was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident; 2. Committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this section, unlawfully means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator's ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or 3. Was operating or driving a motor vehicle in violation of C. Before administering a preliminary breath test under subsection B., the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction. If the person refuses to submit to the test, the test shall not be administered. D. The result of the test under subsection B. may be used by the law enforcement officer to determine whether the driver or operator should be arrested. E. Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction. F. If a driver or operator is arrested, the provisions of subsection A. apply. The preliminary breath test authorized in this section is in addition to any tests authorized under subsection A. of this section.

13 G. A person who operates or drives a motor vehicle, aircraft or watercraft within the municipality shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person. H. Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section. (AO No ; AO No ; AO No ; AO No ; AO No , ; AO No ; AO No , 1, ; AO No , 3, ; AO No , 3, )2 State law references: Implied consent, AS Driving under the influence--refusal to submit to chemical tests. A. If a person under arrest refused the request of a law enforcement officer to submit to a chemical test undersection , after being advised by the officer that the refusal will, if that person was arrested while operating or driving a motor vehicle for which a driver's license is required, result in the denial or revocation of the license or nonresident privilege to drive, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or a watercraft under the influence, and that the refusal is a misdemeanor, a chemical test shall not be given, except as provided bysection B. The refusal of a person to submit to a chemical test of his or her breath under subsection A of this section is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating, driving or in actual physical control of a motor vehicle or operating an aircraft or watercraft under the influence. C. Refusal to submit to the chemical test of breath authorized bysection is a misdemeanor. D. Upon conviction for refusal to submit to chemical tests under subsection C of this section: 1. The court shall impose a minimum sentence of imprisonment of: a. Not less than 72 consecutive hours and a fine of not less than $1, if the person has not been previously convicted. b. Not less than 20 days and a fine of not less than $3, if the person has been previously convicted once. c. Not less than 60 days and a fine of not less than $4, if the person has been previously convicted twice. d. Not less than 120 days and a fine of not less than $5, if the person has been previously convicted three times. e. Not less than 240 days and a fine of not less than $6, if the person has been previously convicted four times. f. Not less than 360 days and a fine of not less than $7, if the person has been previously convicted more than four times.

14 2. Except in mitigated circumstances, the court shall impose more than the mandatory minimum sentence. Mitigated circumstances do not exist if any of the following circumstances are present: a. The defendant's driving conduct caused personal injury or property damage to another. b. The defendant failed to stop for a red light or stop sign. c. A container of alcoholic beverage was open in the passenger compartment of the defendant's vehicle. d. The defendant was on release under AS or AS or on probation for another DUI or refusal charge or conviction. e. The defendant has been previously convicted of reckless driving or leaving the scene of an accident. 3. The court may not: a. Suspend execution of sentence or grant probation except on condition that the person serve the minimum imprisonment under subsection D.1 of this section. b. Suspend imposition of sentence. 4. If the offense involved driving a motor vehicle for which a driver's license is required, the person's driver's license shall be revoked in accordance with AS In addition, the court shall order, and a person convicted under this section shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation that the court, after consideration of any information compiled under subsection H of this section, finds appropriate. 5. If the person has any interest in the vehicle used in the commission of the offense, the court shall order that: a. The vehicle be impounded for 30 days if the person has not been previously convicted; and b. The person's interest in the vehicle be forfeited to the municipality if the person has been previously convicted. At sentencing, the court shall order that any vehicle return bond which has been posted to secure the release of the vehicle be forfeited to the municipality if the vehicle subject to the vehicle return bond is not returned to the custody of the municipality within five days after the sentencing. At sentencing, the court shall order that any vehicle return bond posted to secure the release of the vehicle be exonerated when the vehicle has been returned to the custody of the municipality. At sentencing, the court may also order that any proceeds of any sale, transfer, or encumbrance of the vehicle be forfeited to the municipality if the vehicle has been sold, transferred, or encumbered while the vehicle has been subject to a vehicle return bond. A vehicle ordered impounded pursuant to this subsection shall not be released until after the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the impound fees and the storage fees. The insurance requirement may be waived by the municipality if the vehicle is inoperable. Impound fees shall include the actual costs of impound plus an administrative fee of $ to offset the municipality's processing costs. Any order of impoundment or forfeiture entered under this subsection is subject to the rights of lienholders, owners, lessors, lessees and co-owners who are not the person convicted of refusal to submit to chemical tests as those rights are adjudicated in civil proceedings undersection

15 If the municipality has brought a civil action undersection seeking impoundment or forfeiture as against all those with an interest in the vehicle except the person charged with a violation of this section, that civil action shall provide the sole forum in which lienholders, owners, lessors, lessees and co-owners who claim an interest in the vehicle but are not the person charged with a violation of this section can seek relief. 6. The court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this subsection is in addition to any other condition authorized under another provision of law. 7. If the court determines that the person has successfully completed a court-ordered treatment program, the court may suspend up to 75 percent of the mandatory minimum sentence required under this section and up to 50 percent of the minimum fines required under this section. This subsection does not apply to a person who has already participated in a court-ordered treatment program two or more times. In this subsection court-ordered treatment means a treatment program for a person who consumes alcohol or drugs and that: a. Requires participation for at least 18 consecutive months; b. Includes planning and treatment for alcohol or drug addiction; c. Includes emphasis on personal responsibility; d. Provides in-court recognition of progress and sanctions for relapses; e. Requires payment of restitution to victims and completion of community work service; f. Includes physician approved treatment of physical addiction and treatment of the psychological causes of addiction; g. Includes a monitoring program and physical placement or housing; and h. Requires adherence to conditions of probation. E. Except as provided by federal law or regulation, every provider of treatment programs to which persons are ordered under subsection D of this section shall supply the state court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under subsection D of this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under subsection D of this section. F. For purposes of this section, convictions for both driving under the influence and for refusal to submit to a chemical test of breath undersection , if arising out of a single transaction and a single arrest, are considered one previous conviction. G. The court shall order a person convicted under this section to satisfy the screening, evaluation, referral and program requirements of an agency authorized by the court to make referrals for rehabilitative treatment or to provide rehabilitative treatment. H. A program of inpatient treatment may be required by the authorized agency under subsection G of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency's referral, and shall specifically set out the grounds upon which the request for

16 review is based. The court may order a hearing on the request for review. I. If a person fails to satisfy the requirements of an authorized agency under subsection H of this section, the court: 1. May impose any portion of a suspended sentence. 2. May punish the failure as contempt of court under AS or as a violation of a condition of probation. 3. Shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a license until the requirements are satisfied. J. The magistrate or judge who sets the conditions of release for a person arrested for refusal to submit to chemical tests shall at the same time set a vehicle return bond for the vehicle alleged in an oral statement of a police officer to have been used in the commission of the offense if the records of the Alaska department of public safety, division of motor vehicles or the records of an agency with similar responsibilities in another state show that the person arrested for the offense has any interest in the vehicle. The purpose of setting a vehicle return bond is to secure the presence of the vehicle pending trial and to provide security to be forfeited along with the proceeds of a sale, transfer, or encumbrance if the defendant's interest in the vehicle is sold, transferred, or encumbered after the vehicle has been released pending trial. A person who secures the release of a vehicle pursuant to a vehicle return bond must return the vehicle to the custody of the municipality upon order of the court. If the vehicle's release has been obtained through the posting of a vehicle return bond and the vehicle is not returned pursuant to the court' order after a judgment of conviction, the municipality may, in addition to obtaining the forfeited bond funds, seize the vehicle to implement the impoundment or forfeiture ordered by the court. If the person has not been previously convicted, the magistrate or judge setting the vehicle return bond shall order that the requirement of the vehicle return bond shall automatically expire 30 days after the vehicle has been seized if the vehicle has not released pursuant to a vehicle return bond. The vehicle return bond set under the authority of this section may only be posted by a person alleged to have used the vehicle in the commission of the offense of refusal to submit to chemical tests or to a person who agrees to return the vehicle upon order of the court upon penalty of forfeiture of the bond. The vehicle return bond set under the authority of this section may be posted at the municipality. A vehicle return bond may be posted in cash only. A vehicle return bond shall be set at a minimum of: 1. Two hundred fifty dollars if the person has not been previously convicted; 2. Five hundred dollars if the person has been previously convicted and the vehicle is 20 years old or older; 3. One thousand dollars if the person has been previously convicted and the vehicle is 15 years old or older but less than 20 years old; 4. One thousand five hundred dollars if the person has been previously convicted and the vehicle is ten years old or older but less than 15 years old; 5. Two thousand dollars if the person has been previously convicted and the vehicle is five years old or older but less than ten years old; and 6. Two thousand five hundred dollars if the person has been previously convicted and the vehicle is less than five years old. A vehicle return bond may be set above the minimum if the vehicle appears to have unusually high value for its age. A vehicle that is or has been the subject of an order under this subsection shall not be released pending trial until the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the vehicle return bond and towing and storage fees, including the administrative fee of $ to offset the municipality's processing costs. If a vehicle has not been impounded for a longer period than the vehicle would be impounded if the person were convicted, the court shall not delete the requirement of

17 the vehicle return bond or exonerate a posted vehicle return bond until the vehicle for which bond has been posted is returned pursuant to court order. Unless the following sentence applies, a vehicle that is or has been the subject of a vehicle return bond may only be released if the person seeking the release of the vehicle provides proof of insurance or an affidavit of insurance, and pays or provides proof of payment of the towing and storage costs, including the administrative fee of $ to offset the municipality's processing costs. The insurance requirement may be waived by the municipality if the vehicle is inoperable. A vehicle may be recovered without payment of the towing and storage costs, including the administrative fee, only if a court makes a specific finding that the seizure of the vehicle was legally unjustified and such specific finding follows a contested hearing or is pursuant to a stipulation between the parties. A seizure is "legally unjustified" only if there was: (1) no reasonable suspicion for the stop of the vehicle leading to an arrest for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle; or (2) no probable cause for the arrest of an individual for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle. K. The conditions of release established for a person charged with refusal to submit to chemical tests shall include at a minimum an order that the person's interest, if any, in the vehicle alleged in an oral statement by a police officer, criminal complaint, information, or indictment to have been used in the commission of the offense be forfeited if the person does not appear as ordered. This subsection applies to any release before judgment of conviction on a charge of refusal to submit to chemical tests, including any release on the person's own recognizance. L. A vehicle that is or has been the subject of an order setting a vehicle return bond under subsection J of this section and has not been released pursuant to that order is subject to the provisions of AS if no criminal complaint, information, or indictment is filed by the date and time of the scheduled arraignment alleging a violation of this section or if the count of the criminal complaint, information, or indictment alleging a violation of this section is amended upon motion of the prosecution, is dismissed by the prosecution, or is resolved by the acquittal of the person alleged to have violated this section. The provisions of Chapter 9.50do not apply to a vehicle that is or has been the subject of an order setting a vehicle return bond under subsection J of this section. Any vehicle return bond set expires on the date and time of the scheduled arraignment if no criminal complaint, information, or indictment alleging a violation of this section is filed by the date and time of the scheduled arraignment. M. Vehicles ordered impounded undersection D.5 which are not claimed at the end of the court-ordered period of impoundment may be disposed of pursuant to the provisions of AS If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle. Personal property in a vehicle that is subject to a vehicle return bond undersection J and has not been released pursuant to that vehicle return bond can be recovered only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the municipality if it is not established by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding that the seizure of the vehicle was legally unjustified following a contested hearing or pursuant to a stipulation between the parties. N. A motor vehicle that is the subject of a vehicle return bond under subsection J of this section and has not been released pursuant to that vehicle return bond shall be held in the custody of the police department or a private corporation authorized by the chief of police to retain custody of the motor vehicle, subject only to the orders and decrees of any court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, the chief of police or his or her authorized designee may: 1. Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or 2. Take custody of the motor vehicle and any contents of the motor vehicle and remove

18 it to an appropriate location for disposition in accordance with law. O. Before disposing of any vehicle forfeited under this section, the chief of police or his or her designee shall make an inventory of the contents of any motor vehicle seized. Property seized under this section shall be disposed of by the chief of police or his or her designee in accordance with this subsection. Property forfeited under this section includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle if those contents have not been recovered before the date of the disposal. The chief of police or his or her designee may: 1. Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and municipal attorney fees, provided if such sale is arranged for by the impound contractor the municipality shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the vehicles sold; 2. Take custody of the property and use it in the enforcement of the municipal and state criminal codes; or 3. Destroy the property. (AO No ; AO No , ; AO No (S); AO No ; AO No (S-1), , ; AO No (S), 6--9, ; AO No , 2, ; AO No , 1, ; AO No , 4, ; AO No , 10, 11, ; AO No , 5, 6, ) State law references: Refusal to submit to chemical test, AS Driving under the influence--chemical analysis of breath or blood. A. Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating, driving or in actual physical control of a motor vehicle or operating an aircraft or a watercraft under the influence under subsection B.1 or B.3, the amount of alcohol in the person's breath or blood at the time alleged shall give rise to the following presumptions: 1. If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of his blood, or 0.04 grams or less of alcohol per 210 liters of his breath, it shall be presumed that the person was not under the influence of an alcoholic beverage. 2. If there was in excess of 0.05 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of his blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of his breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage. 3. If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of his blood, or 0.08 grams or more of alcohol per 210 liters of his breath, it shall be presumed that the person was under the influence of an alcoholic beverage. B. Upon the trial of a civil or criminal action or proceedings arising out of acts alleged to have been committed by a person operating, driving or in actual physical control of a commercial

19 motor vehicle under the influence in violation ofsection B.5, if there was less than 0.04 percent by weight of alcohol in the person's blood, or less than 40 milligrams of alcohol per 100 milliliters of the person's blood, or less than 0.04 gram of alcohol per 210 liters of the person's breath, that fact does not give rise to a presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage. If there was 0.04 percent or more by weight of alcohol in the person's blood, or 40 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.04 gram or more of alcohol per 210 liters of the person's breath, it is presumed that the person was under the influence of an alcoholic beverage. C. For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood. D. The provisions of subsection A of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not intoxicated. E. To be considered valid under the provisions of this section, the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the state department of public safety. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods and standards of training approved by the state department of public safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary. F. The person tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer. The fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person's right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person's breath or blood. G. Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to him or his attorney. (CAC ; AO No ; AO No ; AO No ; AO No ; AO No ; AO No ; AO No (S), 12, ; AO No , 1, ; AO No , 4, ; AO No , 5, ) Editor's note: AO No , as amended lowered the legal limits effective 9/1/01. Cross references: Drinking while driving, Driving under the influence--responsibility for costs of incarceration. A. The municipality may enter into agreements with the state regarding incarceration of persons charged with or convicted of violations of this Code. B. Imprisonment undersection orSection D shall be served at such location as the commissioner of corrections may designate.

20 C. The cost of imprisonment resulting from the sentence imposed undersection C orsection D shall be paid to the municipality by the person being sentenced; provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $2, Upon the person's conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the municipality shall seek reimbursement from the person's permanent fund dividend as provided under AS D. The cost of imprisonment required to be paid under subsection C of this section by a convicted person shall be the amount determined and prescribed by regulation by the commissioner of corrections as the uniform average cost of imprisonment under AS (1). (AO No (S), 13, ; AO No , 1, ; AO No , 1, ; AO No , 6, ) Driving under the influence--administration of chemical tests without consent. A. If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood. B. A person who is unconscious or otherwise in a condition rendering that person incapable of refusal is considered not to have withdrawn the consent provided undersection and AS (a), and a chemical test may be administered to determine the amount of alcohol in that person's breath or blood. A person who is unconscious or otherwise incapable of refusal need not be placed under arrest before a chemical test may be administered. C. If a chemical test is administered to a person under subsection A or B of this section, that person is not subject to the penalties for refusal to submit to a chemical test provided by AS , orsection (AO No ; AO No , ; AO No , 1, ) Impoundment and forfeiture of vehicle. A. Mandatory impound; discretionary impound. 1. A motor vehicle operated, driven or in the actual physical control of an individual arrested for or charged with an alleged violation ofsection , pertaining to driving while license suspended/revoked/cancelled,section , pertaining to driving while under the influence,section , pertaining to refusal to submit to chemical tests, orsection , pertaining to soliciting, may be impounded and may be forfeited to the municipality in accordance with this section. 2. A motor vehicle operated, driven or in the actual physical control of an individual arrested for or charged with an alleged violation ofsection B., pertaining to operating a motor vehicle without the required security in effect at the time of operation, may be impounded through a seizure of the vehicle incident to the citation or arrest, at the discretion of the officer. B. It shall be presumed a vehicle operated by or driven by or in the actual physical control of

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